New South Wales Consolidated Acts

REAL PROPERTY ACT 1900 - SECT 129

129 Circumstances in which compensation payable

(1) Any person who suffers loss or damage as a result of the operation of this Act in respect of any land, where the loss or damage arises from:

(a) any act or omission of the Registrar-General in the execution or performance of his or her functions or duties under this Act in relation to the land, or

(b) the registration (otherwise than under section 45E) of some other person as proprietor of the land, or of any estate or interest in the land, or

(c) any error, misdescription or omission in the Register in relation to the land, or

(d) the land having been brought under the provisions of this Act, or

(e) the person having been deprived of the land, or of any estate or interest in the land, as a consequence of fraud, or

(f) an error or omission in an official search in relation to the land, or

(g) any error of the Registrar-General in recording details supplied in the notice referred to in section 39 (1B),

is entitled to payment of compensation from the Torrens Assurance Fund.

(2) Compensation is not payable in relation to any loss or damage suffered by any person:

(a) to the extent to which the loss or damage is a consequence of any act or omission by that person, or

(b) to the extent to which the loss or damage:

(i) is a consequence of any fraudulent, wilful or negligent act or omission by any solicitor, licensed conveyancer, real estate agent or information broker, and

(ii) is compensable under an indemnity given by a professional indemnity insurer, or

(c) to the extent to which that person has failed to mitigate the loss or damage, or

(d) to the extent to which the loss or damage has been offset by some other benefit to that person that has arisen from substantially the same circumstances as those from which the loss or damage has arisen, or

(e) where the loss or damage arises because of an error or miscalculation in the measurement of land, or

(f) where the loss or damage arises from:

(i) the breach by a registered proprietor of any trust (whether express, implied or constructive), or

(ii) the inclusion of the same land in two or more grants, or

(g) where the loss or damage arises from the recording, or the omitting to record, in the Register of an approved determination of native title or other matter relating to native title rights and interests, or

(h) where the loss or damage arises from circumstances in respect of which this Act provides that proceedings against the Registrar-General do not lie, or

(i) where the loss or damage arises from an error contained in a plan lodged in accordance with Division 3C of Part 2 of the Conveyancing Act 1919 , or

(j) where the loss or damage arises from the person’s failure, as mortgagee or transferee of a mortgage, to comply with section 56C or from the cancellation of a recording with respect to a mortgage in accordance with section 56C (6), or

(k) where the loss or damage arises from the recording of a Registrar-General’s caveat in the Register under section 12 (1) (e) or (f) or the removal of such a caveat by the Registrar-General, or

(l) where the loss or damage arises from the execution of an instrument by an attorney (under a power of attorney) acting contrary to, or outside of, the authority conferred on him or her by the power of attorney, or

(m) where the loss or damage is the result of an easement not being recorded in the Register (except where the easement is not recorded in the Register due to an error of the Registrar-General), or

(n) where the loss or damage arises from the improper exercise of a power of sale, or

(o) where the loss or damage arises from the operation of section 129 of the Corporations Act 2001 of the Commonwealth, or

(p) where the loss or damage arises from the provision by the Registrar-General of information supplied in the notice referred to in section 39 (1B) (subject to subsection (1) (g)).

(3) Subsection (2) (g) applies whether the loss or damage is alleged to have been suffered:

(a) by a holder of native title or a claimant for native title, or

(b) by a person deprived of land or an estate or interest in land as a result of the making of an approved determination of native title, or

(c) by any other person,

but does not apply to an error made by the Registrar-General in the recording of matter in the Register.

(4) For the purposes of subsection (2) (m), an error of the Registrar-General does not extend to the Registrar-General’s failure, in relation to the creation of a qualified folio of the Register under Part 4A, to make searches or inquiries as to the existence of any easement.

(5) The entitlement to compensation under subsection (1) does not confer any entitlement to compensation for personal injury.

(6) In this section, "information broker" means a person who has entered into an agreement with the Registrar-General to make information in the Register available in accordance with the conditions determined by the Registrar-General under section 96B (2).